BIA Addresses K-2 Age Out Eligibility for Adjustment of Status: K-2s Don't Age Out

A derivative child of a nonimmigrant fiancé(e) visa holder under section 101(a)(15)(K)(iii) of the INA is not ineligible for adjustment of status simply by virtue of having turned 21 after admission to the United States on a K-2 nonimmigrant visa. Matter of Le, 25 I&N Dec. 541 (BIA 2011)

The Board’s long-awaited ruling favorably resolves the issue of whether  the child of a fiancée of a U.S. citizen (a K-2 visa holder), who  legally entered the U.S. when under age 21, is eligible for adjustment  of status even after turning age 21. The Board concluded that the age of  the child is “fixed” at the time the child is admitted to the United  States. In doing so, it rejected the Department of Homeland Security’s  position that a K-2 visa holder is eligible only if he or she is under  21 at the time the adjustment of status application is adjudicated. The Board’s decision is consistent with the position that the American  Immigration Council and the American Immigration Lawyers Association  advocated in amicus briefs submitted to the Board in approximately a  half dozen other cases where the child turned 21 after being admitted to  the United States. The noncitizens in these and the many other cases  before both Immigration Judges and U.S. Citizenship and Immigration  Services offices throughout the country now will be able to become  lawful permanent residents as Congress intended.              

USCIS’s approach  was  fundamentally unfair.  For example, under the  USCIS approach, even an individual who obtained a K-2 visa and applied  for adjustment of status several years before his or her twenty-first  birthday would have no way of knowing whether the entire lengthy process  might be wasted because of the time that the application “languished in  the agency’s filing cabinet.”  Congress could not and did not intend  for such an unfair practice. It denied K2 adjustments because alien was was deemed to  have "aged out", meaning he had already reached the age of 21 before the  adjudication of his AOS application was accomplished.

Under Matter of Le,  an applicant, who entered the U.S. on a K-2 visa and  turned 21 before filing for adjustment of status based on her mother’s  marriage to the petitioning U.S. citizen, is nonetheless eligible for  adjustment.

The BIA held that an alien who enters on a K-1 visa and timely enters  into a bona fide marriage with the petitioning spouse, remains eligible  to adjust status under INA §245(a) despite termination of the marriage. Matter of Sesay, 25 I&N Dec. 431 (BIA 2011)